Advertising and commercials

What we do

Advertising is subject to requirements set by law. These requirements serve to protect consumers on the one hand and competitors on the other. The Advertising Code Committee handles complaints regarding advertising and determines whether rules have been violated. Furthermore, advertising law is governed by European rules and standards.

In practice, disputes can arise regarding advertising statements. These can occur, for example, in comparative advertising; advertisements in which a company is compared with competitors. With comparative advertising, it is relevant to seek expert advice prior to the advertising statement in order to clearly understand the boundaries. Even once a dispute has arisen, legal advice and assistance are necessary. In practice, disputes can also arise regarding misleading advertising, unlawful advertising, or online advertising.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of advertising. Contact us to discuss the possibilities.

Advertising law within intellectual property (IP law)

Advertising and promotion constantly touch upon Intellectual Property (IP) law. An advertisement in which you use a competitor's brand, logo, product photo, or slogan is not only an advertising matter but also an IP issue. Advertising law determines whether the message is permitted; trademark law and copyright law determine whether you were allowed to use the underlying signs and works. Combining these two perspectives prevents a campaign that appears permissible at first glance from ultimately failing due to a trademark or copyright claim.

Our mixed teams of lawyers and in-house counsel therefore always view things through both lenses. In doing so, we serve both the international corporation rolling out a European campaign and the baker on the corner wanting to outsmart the local supermarket with a playful comparison. In both cases, the following applies: an incorrect statement can lead to an injunction, rectification, and damages.

Misleading advertising: Article 6:194 of the Dutch Civil Code

Advertising is misleading when the average consumer makes a decision due to incorrect or incomplete information that they would not otherwise have made. The legal basis for misleading statements between businesses is found in Article 6:194 of the Dutch Civil Code (BW) . In addition, the rules regarding unfair trade practices in Articles 6:193a to 6:193j BW apply to consumers , including misleading acts and omissions.

A characteristic feature is the reversed burden of proof: pursuant to Article 6:195 of the Dutch Civil Code, the advertiser must demonstrate the accuracy and completeness of their claims, not the injured party. This makes it possible to quickly enforce an injunction or rectification through summary proceedings. We provide preventive advice regarding claims, health and sustainability assertions (greenwashing), and take action when a competitor oversteps the mark.

Comparative advertising: Article 6:194a of the Dutch Civil Code

Comparative advertising, in which you explicitly or implicitly place your product or service alongside that of a competitor, is in principle permitted. However, Article 6:194a of the Dutch Civil Code (based on Directive 2006/114/EC) imposes strict, cumulative conditions on this. The comparison must, among other things:

• not be misleading;
• concerns goods or services that satisfy the same need or are intended for the same purpose;
• objectively compare one or more essential, relevant, verifiable and representative characteristics (such as price per kilo or composition);
• not lead to confusion with the competitor;
• not damage or belittle the good name of a competing brand;
• not gain an unfair advantage by piggybacking on a brand's fame.

It is precisely these latter conditions that bring trademark law into play: mentioning a competing trademark in a comparison is only permitted as long as you remain within the limits of Article 6:194a of the Dutch Civil Code. We assess your communication in advance so that a sharp campaign does not result in trademark infringement.

Trademark, copyright, and portrait rights in advertising

An advertisement often consists of protected elements: a brand name, a logo, a photographic work, music, or the portrait of a famous person. The use of these requires permission or a legal exception. If you use visual material belonging to another party, copyright. If you show a recognizable person in a campaign, portrait rights relevant and permission may be required.

In addition, too closely imitating a competitor's packaging, design, or corporate identity can lead to slavish imitation or a trade name dispute . We map out the rights involved in advance and arrange licenses or indemnities where necessary.

Online advertising and influencer marketing

Advertising is increasingly shifting to online channels and collaborations with influencers. The rules regarding misleading advertising and the Dutch Advertising Code also apply to this, with specific requirements concerning the recognizability of advertising and the disclosure of paid collaborations (for example, via a clear #adv or #spon tag). Unclear disclaimers, hidden sponsorship, or misleading promotions quickly lead to complaints.

We draft contracts with influencers and media agencies, assess campaigns in advance, and advise on the distribution of liability between the advertiser, agency, and creator. This ensures that an online campaign is legally sound, whether you are advertising nationally or promoting your business locally.

Advertising Code Committee, ACM and the court

In addition to statutory rules, there is self-regulation through the Advertising Code Foundation and the Dutch Advertising Code (NRC). Complaints are handled by the Advertising Code Committee (RCC), with an appeal to the Appeals Tribunal. In practice, recommendations from the RCC are almost always followed, because virtually all media and advertisers are affiliated. Anyone can file a complaint: not only consumers, but also a competitor.

In addition, the Authority for Consumers and Markets (ACM) exercises supervision regarding consumer protection; in the event of unfair trade practices, it can take enforcement action and impose fines. Furthermore, additional rules apply to sectoral advertising, for example under the Financial Supervision Act (Wft) for financial products. We assist you in RCC proceedings, summary proceedings, main proceedings, and appeals, as well as in proceedings involving the ACM.

Frequently asked questions about advertising and marketing

May I compare my product with that of a competitor?
Yes, comparative advertising is permitted in principle, but it must meet all the cumulative conditions of Article 6:194a of the Dutch Civil Code. The comparison must be objective, verifiable, and not misleading, and it may not belittle the competitor or unfairly piggyback on their trademark.

Who must prove that a claim is correct?
In the case of misleading advertising, the burden of proof rests with the advertiser (Article 6:195 of the Dutch Civil Code). You must therefore be able to substantiate that your claims are correct yourself, for example through research or an audit.

What can I do about misleading advertising by a competitor?
You can file a complaint with the Advertising Code Committee and/or seek an injunction, rectification, and damages through summary proceedings. Which route is most effective depends on the urgency and the desired outcome.

Does advertising law also apply to social media and influencers?
Yes. Online advertising and influencer marketing fall under the same rules regarding misleading advertising and the Dutch Advertising Code, with additional requirements regarding the identification of paid collaborations.

Our approach to advice and disputes

MKB Juristen works with mixed teams of lawyers and in-house counsel combining advertising law and intellectual property law. We serve the entire spectrum, from international corporations to the baker on the corner. Whether you want to have a campaign reviewed in advance, arrange a license, or take action against a misleading or infringing statement by another party: we help you consider both the legal and commercial outcome. Feel free to contact us to discuss your situation.